Grace Madoosoodun v iSelect Limited, Anita Tichelaar
[2025] FWC 700
•12 MARCH 2025
| [2025] FWC 700 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Grace Madoosoodun
v
iSelect Limited, Anita Tichelaar
(C2025/696)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 12 MARCH 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection - application made outside of 21-day time limit – no exceptional circumstances – application dismissed.
On the 29 January 2025, Ms Grace Madoosoodun (the Applicant) lodged an application (the Application) pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) in which she asserts that the termination of her employment on 19 November 2025 by iSelect Limited (the Second Respondent) contravened her workplace rights. On 11 February 2025, the Respondent filed its Form F8A response to the Application and raised the jurisdictional objection that the Application had been made outside the statutory 21-day filing period.
Following allocation of the matter to my Chambers on 12 February 2025, a Notice of Listing and Directions were issued to the parties on 13 February 2025 for the filing of material in relation to the jurisdictional issue of the Application being out of time. The Applicant failed to file any material in accordance with the directions. Nor did she respond to correspondence sent from my Chambers on 26 February 2025 reminding her that her submissions and material were overdue.
As the Applicant failed to file any material or respond to correspondence from my Chambers, further correspondence was sent to the parties on 5 March 2025 advising that unless an objection was taken by either party, the jurisdictional issue raised by the Respondent would be determined on the material before me, that being the Form F8 application and the Respondent’s Form F8A response. The Applicant contacted my Chambers by email on 6 March 2025 seeking an adjournment of the hearing and an extension of time to file material, although no reason was advanced for the request. The Applicant’s request was declined, and the Applicant was requested to confirm by 5pm on Thursday 6 March 2025 whether she wished to be heard at the hearing listed for Tuesday 11 March 2025. No response was received, and the hearing was vacated.
Background and Evidence
The Applicant commenced employment with the Respondent on 1 August 2024 as a Comparison Coach. According to the Respondent, the Applicant consistently failed to meet the expectations of her role during her probationary period. This it says was evidenced by;
·late attendance to work on 23 occasions and on 16 of those occasions the Applicant failed to notify her leader that she would be late, those failures being contrary to the Leave, Lateness and Sickness notification requirements;
·on two occasions the Applicant failed to attend work without notifying her leader, the failure to do so being contrary to the Respondent’s Leave Policy;
·multiple unexplained absences during rostered shifts; and
·the Applicant’s failure to model the Respondent’s required behaviours and values including time management, reliability and putting the customer first in the Applicant’s position as a Comparison Coach.
The Respondent submits that the Applicant was provided with clear feedback and opportunities to improve her performance in six separate conversations held on 6 September, 26 September, 3 October, 23 October, 28 October and 13 November 2024. During those conversations, the Respondent submits the Applicant was advised of the following expectations;
·she was required to start every shift at the rostered start time;
·she was required to abide by the Leave, Lateness and Sickness process and the Leave Policy in all instances when late or absent;
·her responsibilities as a leader are to model expected behaviours for new trainees; and
·her conduct had a negative impact on the team and training process.
The Applicant submits that her dismissal followed a workplace harassment complaint that resulted in the complainant and alleged harasser being required to work together. This, she submits, led to retaliation and to her dismissal. As to the alleged lateness and absenteeism, the Applicant submits these were related to her mental health and general well-being, were supported by adequate certification, and were notified in a timely manner.
The Applicant was notified of the Respondent’s decision to terminate her employment on 19 November 2025, both verbally and in writing in the following terms;
“…
As discussed with you today, in accordance with your contract of employment with iSelect Service Pty Ltd, your employment is subject to a six-month minimum employment period of employment.
As outlined in discussions with you, you have demonstrated an inability to follow the notification process around unplanned absences and displayed consistent lateness since commencing in the role of as a Comparison Coach with iSelect. Despite feedback being provided to you, these reported behaviours have meant that we can’t confidently rely on you to perform the minimum expectations of your role.
Given your inability to meet the required standards and expectations of your role as a Comparison Coach, the decision has been made to terminate your employment effective 19 November 2024.
Your final pay will include payment for any work for which you have not yet been paid, including up to close of business 19 November 2024. Your final pay will also include one (1) week’s payment in lieu of notice and any accrued leave entitlements. Payment will be made by direct deposit into your nominated bank account in the next pay period subject to receipt of all company property.
…”
Following her dismissal the Applicant made a number of dismissal dispute applications to the Commission. From a review of the Commission’s case record system, the following chronology of events was established in relation to those various applications.
On 10 December 2024, 21 days after her dismissal, the Applicant filed a Form F9 unlawful termination dispute application – C No. 2024/8879 (First Application). Relevantly, the Form F9 includes information for applicants that makes clear that unlawful termination applications can be made by;
·employees who are not in the national system, or
·national system employees who are not entitled to make a general protections application (see, for example, McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation [2015] FWC 6768), or
·industrial associations entitled to represent the industrial interests of such employees.
On 11 December 2024, a staff member of the Commission unsuccessfully attempted to contact the Applicant by telephone regarding the First Application and left a voice message requesting that she contact the Commission urgently. No response was received from the Applicant to the telephone message left. Correspondence was also sent by the Commission to the Applicant on the same day, relevantly stating as follows;
“…
You may not be eligible to make this application.
This is because iSelect Pty Ltd may be a national system employer and this would mean you could make a general protections application.
If you can make a general protections application, then you can’t make an unlawful termination application.
There are strict time limits. You need to decide which application you want to make as soon as you can.
There is more information about this on the next page.
Deciding which application to make
You can only lodge one type of application about your dismissal at the Commission.
You need to decide if your unlawful termination application is the right one for you or if you will make a different type of application instead.
The Fair Work Commission has three different types of applications that deal with dismissal:
·unfair dismissal
·general protections dismissal
·unlawful termination
We have included information about the different applications below.
Strict time limits apply
You only have 21 days from the date your dismissal took effect to withdraw your unlawful termination application and lodge a new application with us.
You need to decide which application you want to make as soon as you can.
Please contact us if you have any questions about this. You can call us on 1300 799 675.
…
If you decide to change your application
If you decide to make a different type of application, you will need to:
1.Discontinue your unlawful termination application as soon as you can
To discontinue your unlawful termination application, you can send us a completed Form F50 Notice of discontinuance or you can just:
·call us on 1300 799 675
·email [email protected]
You can also fax, mail or visit your nearest Commission office. Details are on our contact us webpage.
2.Lodge a new application form
Complete either:
·Form F8 General protections application involving dismissal
OR
·Form F2 Unfair dismissal application
Email your new form to [email protected].
You can also post, fax or hand deliver it to your nearest Commission office, but remember there are strict time limits for getting your new form to us.…”
On 19 December 2025, a staff member of the Commission made a further unsuccessful attempt to contact the Applicant by telephone. A message was left that the Respondent may be a national system employer which meant the Applicant may not be eligible to make the unlawful termination application. The message also advised that if the Applicant would like to make another dismissal application they only have 21 days from the date their dismissal took effect to withdraw the unlawful termination application and lodge a new application. The Applicant was advised to call back for more details.
On 20 December 2025, an email was sent to the Applicant and Respondent from the Chambers of Deputy President Clancy in the following terms;
“Dear Parties
I refer to the abovementioned matter and the attached Form F9 – Application for the Commission to deal with an Unlawful Termination dispute, lodged by Ms Grace Madoosoodun, with the Fair Work Commission.
On 11 December 2024, the Commission sent the attached correspondence to the Applicant. The Applicant was advised that she may not be eligible to make an application pursuant to s.773 of the Fair Work Act (2009) (the Act) because iSelect Pty Ltd (the Respondent) may be a National System Employer and this would mean that the Applicant could make a General Protections application pursuant to s.365 of the Act; and that if an Applicant is entitled to make a General Protections Application, then they cannot make an Unlawful Termination application (s.723 of the Act). The Applicant was also advised of the strict time limits that apply to making General Protection Applications.
This matter has been reviewed by Deputy President Clancy, Regional Coordinator and the Deputy President directs as follows:
Deputy President Clancy directs the parties as follows:
·The Applicant is to notify Chambers of their intentions in regard to their application, C2024/8879, having particular regard to the s.723 consideration outlined above, by no later than 4pm on Wednesday 15 January 2025.
·The Respondent is file with the Commission and serve on the Applicant a Form F9A – Response to an application for unlawful termination and outline its position having regard to the s.723 consideration outlined above, by no later than 4pm on Wednesday 15 January 2025.
…”
At 4.25pm on 15 January 2025, the Respondent lodged its Form F9A response to the First Application. In its Form F9A, the Respondent raised the jurisdictional objection to the First Application that the Applicant was not eligible to make an unlawful termination application. That was because the Respondent was a national system employer, and the Applicant was a national system employee which meant she was entitled to make a general protections dismissal application.
At 10.35 pm on 15 January 2025, the Applicant lodged a Form F8 general protections dismissal dispute application – C2025/440 (the Second Application).
On 20 January 2025, a staff member of the Commission made an unsuccessful attempt to contact the Applicant regarding the First and Second Applications. A message was left requesting the Applicant contact the Commission’s Helpline.
On 22 January 2025, the Applicant contacted the Commission and spoke with a staff member. The Applicant is recorded as having explained that she lodged the Second Application based on advice the First Application was not appropriate. It was explained to the Applicant that s 723 of the Act prevented the making of the Second Application prior to the withdrawal of the First Application. The Applicant then orally withdrew the First and Second Applications. Correspondence confirming discontinuance of the First and Second Applications was sent by the Commission to the Applicant on the same day.
On 29 January 2025, the Applicant then filed a further Form F8, thereby filing the Application. The Respondent filed its Form F8A response to the Application on 11 February 2025. In doing so it raised the jurisdictional objection that the Application had been made outside the statutory 21-day filing period.
Should an extension of time be granted?
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365. For an application to be validly made under s 365, the application must be made within 21 days after the dismissal took effect or such further period as the Commission allows pursuant to s 366 of the Act.
The Applicant’s dismissal took effect on 19 November 2024. Therefore, the period of 21 days ended at midnight on 10 December 2024. The Application was made on 29 January 2025 and was filed 50 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2) of the Act.
The Act allows the Commission to extend the period within which a general protections dismissal dispute application can be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 December 2024. The delay is the period commencing immediately after that time until 29 January 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[5]
The Applicant contends that the delay in filing the Application is explained by initially mistakenly filing the First Application. She submits that she was subsequently advised by Commission staff to file the Second Application but was not informed that the First Application had to be withdrawn before filing the Second Application. She argues that after being contacted by a Commission staff member on 22 January 2025 and advised of the issue with her applications, she orally withdrew the First and Second Applications and subsequently filed the Application. I discern the Applicant’s argument to be that a combination of her confusion and an absence of clear advice from the Commission combines to explain the filing delay.
The First Application was filed on 10 December 2024, that being the 21st day after the Applicant’s dismissal took effect. On receipt of the First Application, Commission staff noted on the file that the First Application may not be valid if the Respondent was a national system employer. Commission staff took steps on 11 December 2024 to contact the Applicant on the mobile phone number recorded on her application. The Applicant did not respond to that call, or the message left on her phone that she contact the Commission urgently. She also failed to respond to the Commission’s correspondence sent to her on 11 December 2024 in which she was alerted to the potential difficulty with the First Application arising from the Respondent’s potential status as a national system employer.
The claim by the Applicant that she was not advised of the need to withdraw the unlawful termination application before making another relevant application is incorrect. In the letter sent to the Applicant on 11 December 2024, extracts of which are reproduced above at [10], the Applicant was put on notice regarding the potential jurisdictional problem with the First Application that the Respondent may be a national system employer. It was stated in the correspondence that if the Respondent was a national system employer, it would prevent the unlawful termination application. The correspondence also made clear that if the Applicant chose to withdraw the First Application and file a general protections dismissal dispute application, she would need to firstly withdraw the First Application. Had the Applicant been confused about the advice contained in the 11 December 2024 correspondence she could have contacted the Commission as she was requested to in the message left on her phone on 11 December 2024. She did not do so.
A further telephone call was made to the Applicant on 19 December 2024 which the Applicant did not answer. Nor did she contact the Commission despite being encouraged to do so in the message left. The Applicant, by this stage, was demonstrating a failure to take reasonable steps to respond to communication from the Commission regarding the First Application. Those failures tell against the Applicant’s complaint that she was not informed of the need to withdraw her First Application before filing a further application.
On 20 December 2024, correspondence was sent to the Applicant by Deputy President Clancy’s chambers, and which is set out above at [12]. In that correspondence the Applicant was again notified of the potential difficulty with the First Application because of the potential status of the Respondent as a national system employer. A copy of the 11 December 2024 correspondence from the Commission was attached to the 20 December 2024 correspondence. The Applicant was directed to advise the Deputy President’s Chambers by no later than 4pm on Wednesday 15 January 2025 of her intentions regarding the First Application having regard to s 723 of the Act. The Respondent was also directed to file its Form F9 response to the First Application by no later than 4.00pm on 15 January 2025.
The Respondent filed its Form F9A response to the First Application on 15 January 2025. In its response the Respondent raised the jurisdictional objection that as it was a national system employer the First Application was unable to be made. To the extent there was any doubt over the Respondent’s status up to this point, it was largely resolved by the Respondent raising the jurisdictional objection that it was a national system employer. That it was a national system employer was self-evident in my view. The Applicant was now on notice that the First Application was highly problematic if not doomed to fail for want of jurisdiction. The Applicant obviously recognised this by filing the Second Application on 15 January 2025.
In filing the Second Application, the Applicant failed to withdraw the First Application before doing so. Nor did she provide advice to Deputy President Clancy’s chambers of her intentions regarding the First Application as directed in the 20 December 2024 correspondence. The failure to withdraw the First Application before filing the Second Application was also despite earlier written advice to her on 11 December 2024, a copy of which was also attached to the 20 December 2024 correspondence. Nor did she respond to at least three requests to contact the Commission regarding the First Application. It was only on the 22 January 2025 when she finally contacted the Commission and obtained clarification regarding the operation of s 723 of the Act that she orally withdrew the First and Second Applications. Having withdrawn the First and Second Applications on 22 January 2025, there was a further unexplained seven-day delay in filing the Application on 29 January 2025.
I am prepared to accept that while the Applicant was put on notice by the Commission on 11 December 2025 regarding the potential national system employer status of the Respondent, the Respondent did not file its Form F9 response to the First Application until 15 January 2024. Prior to that point there may have been confusion on the part of the Applicant. I accept this explains the filing delay between 10 December 2024 and 15 January 2025. The status of the Respondent as a national system employer with the attendant negative implications for the First Application, was however resolved on 15 January 2025, at which point the Applicant filed the Second Application.
The Applicant’s claim that she was not advised by the Commission that she was required to withdraw the First Application before filing the Second Application has no merit. She was advised of the process of withdrawing the First Application in writing on 11 December 2024 and was reminded of this in further correspondence sent to her on 20 December 2024. Had she responded to any of the calls from Commission staff she would also have obtained the necessary clarification of the process well before the 22 January 2025. In these circumstances I do not accept that the Applicant has provided an acceptable explanation for the filing delay after 15 January 2025. Even if I were to accept there was some justified confusion on the part of the Applicant beyond 15 January and up to 22 January 2025, there was no explanation offered for the further seven-day filing delay till 29 January 2025.
It follows from the foregoing that while the Applicant has provided an acceptable explanation for part of the filing delay from 10 December 2024 to 15 January 2025, she has failed to provide an acceptable explanation for the further delay from 15 to 29 January 2025. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant has taken steps to dispute her dismissal by making the First and Second Applications. I have however already taken the Applicant’s actions in filing and then withdrawing those applications into account when considering the reason for the delay in filing the Application. Having already taken those applications into account I attach neutral weight to them in the context of this criteria.
Prejudice to the employer
The Application was filed 50 days outside of the 21-day period. This is a significant delay and is compounded by the Respondent having already been required to respond to the First and Second Application. There would in my view be prejudice to the Respondent if an extension of time were to be granted. This weighs against a finding of exceptional circumstances.
Merits of the Application
The Act requires me to take into account the merits of the Application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[6] it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[7] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
The Applicant argues in her Form F8 that adverse action (her dismissal) was taken against her because of her having raised a complaint and because of a temporary absence. For its part, the Respondent contends that the Applicant was dismissed within the probationary period because of her consistent lateness and failure to comply with absence and late attendance notification requirements.
Having reviewed the limited material before me, it is evident that the merits of the Application may turn on contested points of fact which would ultimately need to be tested if an extension of time were granted, and the matter were to proceed. It is not possible however to make any firm or detailed assessment of the merits. The Applicant has raised an arguable case to which the Respondent has raised a prima facie defence. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Ibid at [40].
[6] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[7] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
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